Minority Justice Implementation Committee
November 13, 2014
(Unofficial Until Approved)
Bismarck, North Dakota
Grand Forks, North Dakota (ITV Location)
Hon. Donovan Foughty
Pat Bohn for Leann Bertsch
Dean Kathryn Rand
Professor James Grijalva
Dr. Leander McDonald
Hon. Steven McCullough
Call to Order: 10:00 a.m.
Birch Burdick moved to approve the minutes from the 14 August Committee meeting. Ulysses Jones seconded and the motion carried unanimously.
Staff provided an overview on efforts to implement PASSPORT. He said there are two major elements: standardized cover sheets and automation/IT issues. The modified cover sheet has been implemented in the state system as of November 2014.
In September, 2013, the Minority Justice Committee held a meeting with IT and with members of the Attorney General’s Office to discuss including tribal protection orders in the state system. Discussions suggested that if tribal orders could be collected in the state system, they could automatically flow ‘up the chain’ of data to the state and federal systems along with state orders.
Discussion during the 31 October State-Tribal Affairs Meeting confirmed that there is no integration of tribal orders into the state system. Data in BCI databases comes from Odyssey, so any tribal orders entered there would automatically pass into the system. However, discussions revealed that the system only makes orders available on a statewide basis, and they do not automatically pass to the federal level. Local law enforcement is responsible for entering orders into NCIC. Only a few counties have been entering data, and this has not been systematic. Because of this situation, few state protection orders are accessible by other jurisdictions.
Discussions during a November 10 IT meeting confirmed that North Dakota data is generally not sent to the federal databases. Local law enforcement are probably not aware of the requirement. There was some sense that foreign protection orders are rare in some areas of the state. However, there was a recent an incident in which enforcement in North Carolina of a Walsh County protection order was delayed because the order could not be verified by foreign authorities. The order did not appear in the national database.
State IT has been working on a process to automatically send state data to NCIC, the national database, which should be implemented and running by January. There is a grant to create processes of forwarding data and to ensuring certain federal data quality requirements are met. The goal is to create a reconciliation process that runs monthly to ensure data quality. Incomplete data fields can lead to automatic rejection by the NCIC database. If the process expands to include tribal orders, it will also require tribal contact persons to reconcile information.
Judge Foughty said that tribal protection orders could be included in the state system through an existing process of registration for foreign protection orders. A foreign protection order can be presented to county officials for registration, who enter order information into the system. Registration occurs at the discretion of the order holder. Judge Foughty said that it might be possible to create a method allowing tribal courts to register orders in this manner. This method would require extra work from clerks, but the orders would appear in Odyssey.
Scott Davis spoke about differing tribal systems and the feasibility of beginning an effort to include tribal orders in the state system. He outlined difficulties that some of the tribes face, and suggested that Turtle Mountain would provide a good place to initiate a cooperative effort. Judge Foughty said that it seemed that the technical people at the court level were willing to make whatever changes necessary to include tribal orders. Jim Fitzsimmons agreed that pushing a pilot project would be desirable.
Ulysses Jones asked about how this system would ensure that terminated orders are not enforced. Staff said that IT emphasized a need for reliable tribal contacts to allow attorney general’s office to determine whether orders in the system are valid. In addition, there is often a need for contacts to verify data such as eye color, hair color, etc. This process helps to ensure sufficient data completeness to be accepted by federal databases.
IT indicated that if tribes could enter protection orders directly into NCIC, the state could access them, and it is unknown whether any tribe currently has this ability. It appears to be much easier for the tribes to get data out of the system than send data into it. However, tribes could potentially enter data directly into NCIC using teletype software.
Staff said that discussions leaned toward registration of tribal orders as foreign protection orders. However, he said that a number of options were considered, especially during the November 10 meeting. Members of the State-Tribal Affairs Committee suggested that an alternate solution might be to develop a web portal that would allow direct entry of data.
Staff described results from two Committee surveys on limited-scope services. The first survey was directed toward practicing attorneys, the second toward judges. Half of the responding attorneys said that they had considered offering limited-scope legal services. However, few indicated having done research on the subject. About half of respondents indicated that they did not feel comfortable offering limited-scope services to clients. The most frequent reasons for discomfort were: doubt that courts would respect limited-scope agreement (61%), concern about being compelled to continue representation (73%), and apprehension about potential disciplinary actions (almost 60%).
Judge Foughty said Jeanne McLean has given presentations on limited-scope to attorneys. Feedback confirms concerns that judges would compel continued representation. He said judges need to be educated more on this concept, including the reasons for allowing limited-scope arrangements. Birch Burdick added that there must be clear, written agreements between client and counsel. Judge Foughty said Jeanne McLean has developed model limited-scope contracts for use in North Dakota. Staff noted that research usually describes limited-scope representation as complementing state court self-help programs providing legal information.
Ulysses Jones said another worry is that clients will continue to seek advice if problems arise, even if such problems are outside of the scope of the agreement. Clients, especially if unsophisticated, may ignore the limitations and assume attorneys are obligated to help. This would defeat the purpose of limited-scope. Staff noted that several attorneys identified the same issue in the survey comments.
Survey questions asked whether attorneys would be interested in more education programs on limited-scope. The answers were overwhelmingly affirmative (75-80%), but indicated that opportunities for mentorship were the least desired of the listed options. Most resources on limited-scope services suggest that mentorships are a significant aid to successful limited-scope programs. One attorney suggested offering a webinar.
The judges survey results were similar to the attorney survey, with most judges having never researched limited-scope, and three out of four having never participated in education programs on the subject. However, respondents felt they had a good basic understanding of limited-scope. Most indicated that limited-scope clients appeared in their courtrooms very rarely. Opinions on the need for education and resources and the types of programs desired were similar to those of attorneys.
Jim Fitzsimmons said that SBAND has been holding free ethics seminars on Friday afternoons throughout the state. The seminars appear to be well-attended because of the ethical credits offered. He said the Committee should coordinate with SBAND and see if a limited-scope CLE could be put together for 2.5 to 3 hours, provided as an ethics training, and offered for free. He said that limited-scope services will not move forward until judges and lawyers understand it in the same way. SBAND will have to play a significant part in this process.
Judge Foughty said that before any training programs are provided to attorneys, the judges should receive the same training. The program can then be advertised as the same ethics course that judges went through. He added that when the Bar asks attorneys to take a case, they should send information on limited-scope services. Ulysses Jones said that limited-scope should be a viable option, but he is not sure that the Bar will accept it as workable.
Staff said the Committee decided to amend North Dakota rules to include language from Nebraska’s limited-scope rules during the August meeting. Jim Ganje drafted the modified rules included in the meeting materials. On approval of the Committee, these will be sent to Joint Procedure Committee for consideration.
Judge Foughty asked for a motion to forward the drafts to the Joint Procedure Committee. Bruce Quick so moved. Ulysses Jones proposed an amendment changing the phrase ‘continuing obligation to represent client’ to ‘further obligation to represent client.’ Members agreed to adopt this change. Ulysses Jones seconded the motion as amended. The motion carried unanimously.
Judge Foughty asked members to go through the report again and email any edits or corrections to staff within the next seven days. He said that, unless the committee wants to submit the report as a whole, it can probably be submitted from the Chair.
Judge Foughty said he would like to develop an appendix that includes relevant activities that other groups have undertaken. Staff said he could compile an appendix. He asked members to forward any reports or other relevant information they would like included.
Ulysses Jones asked about the likelihood of holding meetings or somehow revisiting people the Race and Bias Commission spoke with to understand how problems have developed. He said problems related to the oil patch may be an area worth investigating. Staff said this focus could be appropriate for an access to justice commission, but said that the Minority Justice Committee could support only a small number of such activities.
Judge Foughty and Jim Fitzsimmons suggested that a report completed by Judge Hagerty and Bill Neumann that could be a good resource if the Committee decides to plan any meetings in western North Dakota.
Access to Justice Commission: Members and Organization
Judge Foughty said that these access to justice commissions evolved largely in the context of minority justice, and that influenced the idea expanding the Minority Justice Committee in a similar manner. Jim Fitzsimmons said that one problem is that the name change could be perceived as abandoning minority justice issues.
Staff said that both the Minority Justice Committee and the Race and Bias Commission have covered some ground that would fit in with the typical work of access to justice commissions. In some instances where statistical data proving bias or disproportion was uncertain, members concentrated on ensuring general fairness in processes. This focus embraced minority groups as well as other disadvantaged populations.
Foughty requested staff provide a list of access to justice commission titles from the NCSC website. He said that any re-drafted rule must contain the notion of how the system responds to minorities.
Staff noted that August discussions produced several suggestions for three additional members of the Access to Justice Commission. He asked whether there should be action to select who to invite if expansion of the Committee occurs. Jim Fitzsimmons asked if there are any new members should be included based on employment position.
Bruce Quick suggested reserving a seat for a current law student. This position could probably be a special one or two year seat. Lee Brockington, who attended the August meeting, indicated that law student groups have an interest in the Committee’s work. Jim Fitzsimmons suggested designating a seat that UND Law school fill upon the graduation of the holder.
Judge Foughty said that the Pro Bono Volunteer Lawyer Committee Chair could sit on the Commission. Levi Andrist currently holds this position. Jim Fitzsimmons suggested including Michelle Gayette, the Legal Services Developer for the Aging Services Division of the North Dakota Department of Human Services. He said issues in area of elder law and aging services will probably increase.
Connecting Courts to Minority & Economically Disadvantaged Communities
Judge Foughty explained several brochures distributed with the meeting materials. He attended a National Center for State Courts meeting in Washington DC that included religious groups and nonprofits that provide services to communities. Discussions covered how these groups could help to improve relationships between courts and minority groups and expand basic knowledge of the legal system.
In North Dakota, Judge Hagerty provided training for clergy and for people working in psychology and other health-related fields about two years ago. This program was very well received. Judge Foughty said the courts should develop training sessions on different topics, to be delivered to professional groups throughout the state. He said there was a recent training on the juvenile system provided to social workers in Unit 1. This kind of program could rely on presentations that have already been developed. Ulysses Jones suggested providing training to teachers at their convention. Birch Burdick said working with New American communities in Fargo would also be important.
Judge Foughty directed staff to find past presenters on legal topics who could be asked to participate in programs for teachers, clergy, social workers, and other professionals.
Mental Health Court: General Information
Staff explained meeting materials and provided some general information on mental health courts. Definitions of mental health courts vary, but they generally use a problem-solving approach with defined standards for participant completion. This approach includes judicial supervision and the use of community-based treatment plans. Mental health courts use incentives and sanctions for participants. Criteria for participation may include the charges, criminal history, and psychiatric history.
Court processes include early screening by professionals and later, more extensive assessment for those who make it through initial screening. Defendants must agree to participate. If a defendant adheres to the treatment plan, the case may be dismissed or the sentence reduced. Noncompliance may result in the case being sent back to criminal courts. However, mental health courts usually employ intermediate sanctions.
Birch Burdick said that Fargo considered a similar project two years ago. The court was willing to look at mental health issues, but was not willing to dedicate the resources to develop a full mental health court. However, Fargo does have an employee who completes screenings similar to those mentioned in the materials. This process occurs at an early stage with the goal of providing some mental health assistance for people in jail. He said that the mental health courts are similar to drug courts in that, hopefully, in the long-run, they get people out of the system and provide effective help.
Pat Bohn said that useful information on specialty courts may be available from Clay County, Minnesota, which has developed several specialized courts. He added that one common problem is that many specialty courts do not take felonies or high risk offenders, opting instead to include less difficult cases. However, success with difficult cases is what makes the most significant difference in public safety.
Judge Foughty said that he contacted Judge Hagerty regarding the pretrial assessment tool pilot project. She said that she would have to discuss the topic with administrators and other judges. Judge Foughty suggested she speak with Leann Bertsch, because DOCR has resources to contribute. He has not heard back at this time.
Having no further business, the meeting adjourned at 12:25 p.m.